The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters in a so-called retention election – in which there is no competing candidate but voters are asked simply whether they approve of the incumbent – in order to keep their positions. In twenty of the states that provide for electoral contests between competing judicial candidates, some or all judicial elections are nonpartisan, even though candidates for other state offices are elected on party lines. Most strikingly, virtually all states that provide for judicial elections also impose campaign codes that restrict the election-related activities of judicial candidates to a far greater extent than these states regulate the campaigns of executive and legislative candidates. Generally adopted by rule of the state's highest court rather than by statute, these codes, inter alia, limit what judicial candidates may say in their campaigns, restrict how they raise campaign contributions, and curtail their ability to engage in partisan political activities other than support for their own candidacies.
In 2002, the United States Supreme Court sharply called into question the constitutionality of state judicial campaign restrictions. In Republican Party of Minnesota v. White, a closely divided Supreme Court invalidated the provision of the Minnesota Code of Judicial Conduct that precluded judicial candidates from "announcing" their views concerning disputed legal and political questions. White found that the First Amendment applies to a judicial campaign code and, therefore, the code's restriction on campaign speech should be subject to strict judicial scrutiny. The Court cast doubt on the primary rationale for the campaign canons – preserving the impartiality and the appearance of impartiality of the state judiciary – and expressed skepticism with regard to the notion that even if judicial impartiality is a compelling state interest, that interest may be advanced by campaign speech restrictions. Moreover, the Court emphasized the positive value of enabling judicial candidates to express themselves on disputed political and legal questions. As the Court stated, those are "what the elections are about."
Although Justice Scalia's majority opinion observed that "we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office," the Court also pointedly declined to find that the First Amendment allows greater regulation of judicial election campaigns than of other elections. Rather, noting the important lawmaking role of American courts, the majority concluded that the dissenters "greatly exaggerate[d] the difference between judicial and legislative elections." White's treatment of the judicial impartiality rationale and its application of the narrow tailoring requirement raise questions about whether any judicial campaign restriction could pass strict scrutiny. The decision casts a shadow of unconstitutionality over the entire project of judicial election campaign regulation.
In the eighteen months since White, federal courts have held unconstitutional a number of state judicial campaign restrictions that were not at issue in White. Similarly, a number of state courts have revised their canons, including provisions not at issue in White, to make them less restrictive. To be sure, many state courts have retained their canons and have rejected First Amendment challenges to the restrictions on judicial campaign and partisan political activities that the canons impose. But the constitutionality of the state canons that subject judicial campaigns to greater regulation than legislative or executive campaigns remains uncertain.
Judicial Campaign Codes after Republican Party of Minnesota V. White,
University of Pennsylvania Law Review, Vol. 153, p. 181, 2004; Columbia Law School, Public Law & Legal Theory Working Paper No. 04-81
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